The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause

David Gans

Today, the Constitutional Accountability Center (CAC) will release a report, The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause, the first of a series of “narratives” about the text and history of critical constitutional provisions. The report is available here. Jack, who serves on CAC’s Advisory Board, has kindly given us the opportunity to start a conversation about this report and the Privileges or Immunities Clause on this blog in a series of posts over the next several days.

Why start with the Privileges or Immunities Clause? Of all the great words and important clauses in our Constitution, why would a new organization with a mission of promoting the progressive force of the Constitution’s text and history choose as the star of its first narrative a clause that has been a virtual dead letter for 135 years? We will discuss two answers to this valid question in this series of posts.

The first answer is that the hole left in the Constitution by the Supreme Court’s refusal to honor the text and history of the Privileges or Immunities Clause has produced a gaping chasm that separates Americans today in the debate over the protection of fundamental human rights and liberties. The text matters, and when it comes to the constitutional protection of civil and human rights, the Privileges or Immunities Clause is indispensible text. Second, the left/right/center scholarly consensus about the Court’s shabby treatment of the Privileges or Immunities Clause – coupled with recent murmurs on the Court itself – suggest that the time is ripe for a serious push towards a reconsideration of the Clause and the central role it was supposed to play in American constitutional law.

In 1866, Schuyler Colfax, the Speaker of the House of Representatives, called Section One of the Fourteenth Amendment “the gem of the Constitution . . . because it is the Declaration of Independence placed immutably and forever in our Constitution.” The Privileges or Immunities Clause is at the core of Section One: it was written to forbid state and local governments from trampling on the substantive fundamental rights of all Americans, thus securing the “unalienable rights” to which the Declaration referred. Yet, the Clause was never allowed to fulfill its promise. The Supreme Court interred the Privileges or Immunities Clause in the Slaughterhouse Cases in 1873, and it has been little more than a dead letter ever since. Slaughterhouse is an embarrassment to anyone who cares about the text and history of the Constitution; it wrote out of the Constitution one of the document’s most important protections of human and civil rights. And, it is sorely missed today. Without any clear textual hook in the Constitution for protecting fundamental rights against the actions of state and local governments, debates over the basic human rights all Americans possess have run aground, mired in endless debates about whether the Constitution’s text, in fact, protects substantive liberty.

The text and history of the Privileges or Immunities Clause are clear and straightforward. The text – following on the heels of the Citizenship Clause’s grant of national birthright citizenship – provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The key words – privileges or immunities – have gone out of favor in modern American usage, but for most of our history, a privilege was the same thing as a right. This is how James Madison used the word when proposing the Bill of Rights – he called “freedom of the press” and “rights of conscience” the “choicest privileges of the people.” This example is just the tip of the iceberg; as Professors Akhil Amar and Michael Kent Curtis have painstakingly shown, similar examples abound from the founding era through the Civil War. Thus, the words of the Clause secure the fundamental rights of American citizens against hostile state action.

In adding this protection of substantive liberty, the Reconstruction framers acted both from principle and experience. They sought to add this protection to make the words of the Declaration of Independence – invoked by Lincoln at Gettysburg in his call for a “new birth of freedom”– into a constitutional mandate. The Declaration’s protection of “life, liberty, and the pursuit of happiness” was foremost in the mind of the Reconstruction framers because in 1865 and 1866, just after the Civil War, Southern state governments passed the Black Codes, laws that violated virtually all of the fundamental rights of Americans in their efforts to keep African Americans in slavery. Many of the fundamental rights the Clause was meant to protect were rights enumerated in the Bill of Rights, but some were not. The post-Civil War framers regularly invoked fundamental rights – such as the right of access to courts, the right to personal security and bodily integrity, and the right to have a family and raise children – that have no textual basis in the Bill of Rights. Thus, as Professor Michael Gerhardt has written, the Privileges or Immunities Clause is the “natural textual home . . . for unenumerated fundamental rights.”

This account should hardly be controversial. Indeed, it reflects the scholarly consensus of the text and history of the Fourteenth Amendment, thanks principally to the writings of Michael Kent Curtis, Akhil Amar, Larry Tribe, John Hart Ely, Jack Balkin, Randy Barnett and others. Doctrinally, however, Slaughterhouse still reigns supreme, despite its indefensible reading of the text and history of the Privileges or Immunities Clause. Slaughterhouse has been demolished everywhere but on the Court. As Akhil Amar has observed, “[v]irtually no serious modern scholar – left, right, and center – thinks that [Slaughterhouse] is a plausible reading of the Amendment.”

Slaughterhouse got the text and history of the Privileges or Immunities Clause dead wrong. It refused to read the Clause to protect the fundamental rights of all Americans. Instead, it read the Clause to protect a narrow set of rights connected to the workings of the federal government or the Union. According to this reading, the Clause protected rights that promoted access to the federal government, such as the right to access federal waterways or come to the seat of government; it did not protect free speech or bodily integrity, rights that were crucial to the freed slaves’ liberty and security in the South. This narrow reading rendered the Clause effectively meaningless. Indeed, the few rights Slaughterhouse recognized as Fourteenth Amendment privileges or immunities were already protected by the Supremacy Clause, which would forbid state action that interfered with the workings of the federal government or the Union. Justice Samuel Miller, who wrote for the Court, never liked the Privileges or Immunities Clause. During ratification, he favored a version that did not include it; he wanted it out of the Fourteenth Amendment. And Slaughterhouse gave him the chance to effectively write the Clause out of the Amendment.

With the Privileges or Immunities Clause out of the Constitution, the Court eventually turned to the Due Process Clause to protect substantive liberty, making that Clause do the work of two. We are facing the consequences today. Substantive due process reads like a contradiction in terms, and requires courts to engage in legal gymnastics to sustain the protection of fundamental substantive liberties. Despite efforts by some of the greatest constitutional lawyers in history, there is no account of substantive due process that commands respect. The result is our modern-day war over the Constitution and the future of the Supreme Court. Conservatives point to liberal devotion to substantive due process as Exhibit A in their case that liberals care little about the text of the Constitution and are content to have judges make things up as they go along. Progressives see the conservative attack on substantive due process as evidence that conservative judges are willing to roll back protection for even the fundamental liberties enshrined in the Bill of Rights.

There is a straightforward way out of this seemingly unwinnable war: restore the text of the Privileges or Immunities to its rightful place. The time could not be better. After all, we live in an age in which text and history are the touchstone for constitutional analysis, yet the text and history of the Privileges or Immunities Clause – meant to be the centerpiece of Section One of the Fourteenth Amendment – have been lost to us for over a century.

President-elect Obama is perfectly positioned to make this restoration a central part of his legal agenda. Not only did Obama win a commanding victory by appealing to the common ground we all share, his own writings capture the essence of the Privileges or Immunities Clause and the Declaration of Independence on which it is based -- the principle that all Americans, as their birthright, share a basic set of fundamental rights that no government may abridge. As he put it in Audacity of Hope:

For all our disagreements we would be hard pressed to find a conservative or liberal in America today . . . who doesn’t subscribe to the basic set of individual liberties identified by our Founders and enshrined in our Constitution and common law: the right to speak our minds; the right to worship how and if we wish; the right to peaceably assemble to petition our government; the right to own, buy, and sell property and not have it taken without fair compensation; the right to be free from unreasonable searches and seizures; the right not to be detained by the state without due process; the right to a fair and speedy trial; and the right to make our own determinations, with minimal restriction, regarding family life and the way we raise our children. . . . We consider these rights to be universal, a codification of liberty’s meaning . . . .

There is good reason to think that the Supreme Court will be receptive to this approach. In 1999, in Saenz v. Roe, the Supreme Court invalidated a welfare reform measure for violating the right to travel protected by the Privileges or Immunities Clause, marking the first time in modern constitutional law that the Court treated the Clause as anything other than a dead letter. A seven-Justice majority united behind Justice Stevens’ opinion for the Court. Justice Thomas, the only currently sitting Justice to dissent, agreed that the Clause protected fundamental rights, though he disagreed that California had violated such a right. More important, Justice Thomas signaled a willingness to overrule Slaughterhouse, a suggestion he repeated in 2000 in Troxel v. Granville, a case that affirmed the unwritten fundamental right of parents to direct the upbringing of their children.

So far, we have bracketed the big question -- what rights should count as fundamental rights protected by the Clause? Our next two posts will take on that question. On Thursday, we will look at the Second Amendment incorporation question. After Heller, gun rights advocates have argued that the Privileges or Immunities Clause should be the vehicle to incorporate against the states the individual right recognized in Heller. Next Monday, in our final post, we will examine the protection the Clause should give to fundamental rights not enumerated elsewhere in the Constitution.

This post was co-authored by Douglas Kendall, President and Founder of Constitutional Accountability Center. To read more about the Center and the progressive Constitution, visit CAC’s blog, Text & History.

I look forward to your post on the use of the P&I Clause to apply the Second Amendment to the states. I am developing an incorporation argument to challenge various Colorado statutes prohibiting the possession of firearms by non-felons. I am unsure whether to include a P&I argument or not.

If I were you, I'd include it to preserve it. The Supreme Court may well have 5 votes for a reinvigoration of the P&I clause. (Remember, not only do conservatives like Thomas like it, but liberals like it too because it can put some liberal constitutional law doctrines on a firmer footing than due process.) On the other hand, I doubt you will get a lower court to bite on it, whereas they might bite on a due process argument.

It would be good if you also discussed antidiscrimination/equal-citizenship readings of the clause, like John Harrison's. See, e.g., here at 33-52. It's telling, I think, that the P/I clause, not equal protection, was seen as the original justification for civil-rights legislation like the Civil Rights Act of 1875.

I don't think that the "key words" were "privileges or immunities"--no one has ever really interpreted them as different from rights in general, I think. The key word is rather "of"--what relationship does a right have to bear to "citizens of the United States" to count? "Of" might mean (a) "possessed as a moral matter by" (see, e.g., Dworkin), or (b) "possessed against the federal government under the constitution by" (see, e.g., Justice Black, Sen. Thurman in 1872), or (c) "possessed in virtue of the existence of the Union" (Slaughterhouse) or (d) "generally possessed by." (see, e.g., Sen. Sherman in 1872). It also might mean some combination of those.

I am considering leading with the due process argument and then offer the P&I as an alternative argument in case the local trial court holds that the right to keep and bear arms is not a "fundamental right" that can be selectively incorporated.

Chris's post brings up an important point, namely the meaning of the citizenship clause just preceeding the P&I clause. It would be important to interpret that clause correctly in order catch the full meaning of the P&I clause.

Kenneth A. Klukowski's "Citizen Gun Rights: Incorporating the Second Amendment Through the Privileges or Immunities Clause" available at SSRN:

http://ssrn.com/abstract=1290584

makes a credible argument. However, he seems to be of the view that such incorporation would not be limited to citizens (just as the due process clause of the 14th Amendments applies to "persons").

Then consider Adam J. White's "Wilkinson and Posner, Dissenting, Two conservative judges challenge Justice Scalia" in the Weekly Standard, 12/15/08, Vol. 014, Issue 13, concerning the Heller decision. (Available on the Internet but I do not have the link readily at hand.)

"Wilkinson's specific criticisms are open to challenge. In arguing that Heller settles the constitutioal question at the national level, for example, Wilkinson assumes, with little justification, that the Court will apply Heller against state laws, and not merely against federal laws." White's reference to " ... with little justification ... " is somewhat confusing. I have not as yet read Wilkinson's Virginia Law Review article critical of Scalia's Heller decision. But White stresses criticism of originalism by Wilkinson as well as by Posner. This seems to suggest that the 5-4 Heller decision may have a rocky road ahead, perhaps with more conservatives joining Wilkinson and Posner in their criticisms. Apparently not all conservatives are on the same wave length regarding Heller and originalism.

Well, I agree with much of this post, and with the idea that, with Saenz v. Roe, it may be possible to sensibly resurrect the privileges or immunities clause to do much of the “heavy lifting” on fundamental rights that now get carried by the more linguistically-awkward notion of “substantive due process.” But I resist the notion that it is Slaughterhouse that deserves its “hall of infamy” position as the illogical opinion that buried the privileges or immunities clause. To be sure, parts of Miller’s opinion seem to lodge protection of most “fundamental” rights with the rights of citizens of a state, but when one looks carefully at rights that Miller says “owe their existence to the Federal government, its National character, its Constitution, or its laws,” he identifies not just rather trivial federal privileges or immunities (the right “to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government”), but also very fundamental—and constitutionally-based—rights such as the “right to peaceably assemble and petition for redress of grievances” and “the privilege of the writ of habeas corpus.” In those latter two, the “right to peaceably assemble and petition for redress of grievances” almost has to be a reference to the right embodied in the First Amendment, and the “federal” right of habeas corpus appears only in Article I of the Constitution itself. Given that, there is, I think, no plausible way to read Slaughterhouse as, alone, stripping the 14th Amendment’s “privileges or immunities” clause of any significant “fundamental rights” meaning—despite how it is commonplace as reading it to hold exactly that. If Miller was willing to subsume some First Amendment rights within federal “privileges or immunities,” why not other protections in the Bill of Rights? I think it is very plausible to say that the opinions in Slaughterhouse come down to a disagreement between Field (who saw the 14th Amendment as expanding Article IV, Section 2 from discrimination between in-state and out-of-state citizens to “the protection of every citizen of the United States against hostile and discriminating legislation against him in favor of others, whether they reside in the same or in different States”), versus Miller, who didn’t see “the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons,” as one of those rights protected by the 14th Amendment. And, at least in light of the subsequent history of Lochner and its subsequent rejection, it isn’t entirely clear to me that Miller’s opinion (on the right of the government to franchise government-created monopolies) is further from modern consensus than Field’s—although that is complicated by involving both dormant commerce clause concerns as well as privileges and immunities under Article IV. To be sure, United States v. Cruikshank, three years later, in holding that the right of assembly to petition for redress of grievances was a right directed only to the federal government, not to states, can fairly be said to kill off any important role for the privileges or immunities clause (at least until Saenz). But since that holding directly contradicts one of the examples of Miller of a federal privilege or immunity in Slaughterhouse, that may be where he (and the Court) evolved to (in the short time of three years), but it still, in my opinion, represents a distortion of what was said or decided in the Slaughterhouse Cases. In short, why blame Slaughterhouse (as badly written as it is) as improperly burying the “privileges or immunities” clause, when it was Cruikshank that did it (in the study with a lead pipe)? This point isn’t original, but it, I think bears repeating.

I appreciate this discussion of something that can be shown to provide further historical backing to substantive liberty.

In Twining v. N.J. (1908), the Supreme Court admitted a broad reading of this clause had bite, but cited precedent and fear of judicial overreaching to support a narrower path.

But, a broad support of liberty was still secured, just with somewhat less of a clear textual home. [I think Due Process can work; see, e.g., John Orth's book] The fact Scalia split from Thomas (see Troxell) on this issue suggests this one won't be a slam dunk, but it has potential. See, e.g., Charles L. Black Jr.'s A New Birth of Freedom.

As to 2A, Amar et. al. would suggest that an incorporation argument is logical by this route. Just as free speech was a "p or i" in the eyes of many 14A framers, so was the individual right to keep and bear arms.

A citation of relevant historical material will likely at times use "privilege and immunity" language. FWIW, I don't see the down side.

"For all our disagreements we would be hard pressed to find a conservative or liberal in America today . . . who doesn’t subscribe to the basic set of individual liberties identified by our Founders and enshrined in our Constitution and common law:"

I call BS on this: All you have to do is glance at the list that follows, and a basic individual liberty identified by our Founders and enshrined in the Constitution is GLARINGLY obvious by it's absence.

A few problems. First, it doesn't really deal with the issue of non-citizens very well. Second, one concern with substantive due process is that it is open-ended. Justice Black opposed using it to protect a right to privacy too.

Finally, substantive due process has a long history that is not really recognized here. The dissenters in Slaughterhouse Cases themselves referenced it. As did some anti-slavery Republicans.

Relatedly, enough with the Dred Scott and Lochner strawmen. The article in fact notes the right to contract (w/i reason) is a privilege or immunity. So is property rights overall. So, relying on that over due process would not have necessarily prevented either ruling.

IMO whenever discussing the Privileges or Immunities clause, it is important to distinguish it from what is probably the better known Privileges and Immunities clause.

The P or I clause, Amendment XIV, Section 1, Clause 2, says,No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States .

The P and I clause, Article IV, Section 2, Clause 1, says,The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Some commenters here added to the confusion by calling the P or I clause the "P & I" clause. One commenter here, Tom Jackson : 7:05 PM, does discuss and compare both clauses.

The majority opinion in Saenz v. Roe, 526 U.S. 489 (1999), applies the P and I clause and discusses its relationship to the P or I clause, but the case syllabus discusses only the P or I clause. However, the majority opinion's discussion of the P and I clause sounds as if this clause was sufficient to decide the case and that the P or I clause was superfluous or redundant here (note sentence in bold):

The “right to travel” discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State . . . .

. . . by virtue of a person’s state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the “Privileges and Immunities of Citizens in the several States” that he visits.14 This provision removes “from the citizens of each State the disabilities of alienage in the other States.” Paul v. Virginia, 8 Wall. 168, 180 (1869) (“[W]ithout some provision . . . removing from citizens of each State the disabilities of alienage in the other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists”). It provides important protections for nonresidents who enter a State whether to obtain employment, Hicklin v. Orbeck, 437 U.S. 518 (1978), to procure medical services, Doe v. Bolton, 410 U.S. 179, 200 (1973), or even to engage in commercial shrimp fishing, Toomer v. Witsell, 334 U.S. 385 (1948). Those protections are not “absolute,” but the Clause “does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.” Id., at 396. There may be a substantial reason for requiring the nonresident to pay more than the resident for a hunting license, see Baldwin v. Fish and Game Comm’n of Mont., 436 U.S. 371, 390—391 (1978), or to enroll in the state university, see Vlandis v. Kline, 412 U.S. 441, 445 (1973), but our cases have not identified any acceptable reason for qualifying the protection afforded by the Clause for “the ‘citizen of State A who ventures into State B’ to settle there and establish a home.” Zobel, 457 U.S., at 74 (O’Connor, J., concurring in judgment). Permissible justifications for discrimination between residents and nonresidents are simply inapplicable to a nonresident’s exercise of the right to move into another State and become a resident of that State. (emphasis added)

What is at issue in this case, then, is this third aspect of the right to travel – the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State. That right is protected not only by the new arrival’s status as a state citizen, but also by her status as a citizen of the United States. . . .

Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases, 16 Wall. 36 (1873), it has always been common ground that this Clause protects the third component of the right to travel.

Footnote 15 of the majority opinion says,

15. The Framers of the Fourteenth Amendment modeled this Clause upon the “Privileges and Immunities” Clause found in Article IV. Cong. Globe, 39th Cong., 1st Sess., 1033—1034 (1866) (statement of Rep. Bingham). In Dred Scott v. Sandford, 19 How. 393 (1857), this Court had limited the protection of Article IV to rights under state law and concluded that free blacks could not claim citizenship. The Fourteenth Amendment overruled this decision. The Amendment’s Privileges and (sic -- should be "or") Immunities Clause and Citizenship Clause guaranteed the rights of newly freed black citizens by ensuring that they could claim the state citizenship of any State in which they resided and by precluding that State from abridging their rights of national citizenship.(emphasis added)

The P and I clause is extensively discussed in the dissenting opinions of Rehnquist and Thomas. Also, Rehnquist's dissent says,

The Court today breathes new life into the previously dormant Privileges or Immunities Clause of the Fourteenth Amendment–a Clause relied upon by this Court in only one other decision, Colgate v. Harvey, 296 U.S. 404 (1935), overruled five years later by Madden v. Kentucky, 309 U.S. 83 (1940).

The original post says:

>>>>>. . . . the hole left in the Constitution by the Supreme Court’s refusal to honor the text and history of the Privileges or Immunities Clause has produced a gaping chasm that separates Americans today in the debate over the protection of fundamental human rights and liberties. <<<<<<<

IMO this "hole left in the Constitution" and a "gaping chasm that separates Americans today in the debate over the protection of fundamental human rights and liberties" have long been filled by the P and I clause of the original Constitution. So far as I can see, all the 14th Amendment's P or I clause really did was guarantee blacks the P and I clause's rights that the Dred Scott decision denied them. The courts have been able to mostly ignore the P or I clause because it is mostly redundant with or overlaps the P and I clause.

While I think it would be possible to say, because of its awkward phrasing, that Article IV’s “privileges and immunities” clause did the heavy lifting of protecting “fundamental rights” (see Corfield v. Coryell), it is the case that Article IV—at least as I understand it—has been read as a basic “non-discrimination” clause, so that rights a state gives its citizens must be extended to others as well (and, in that way, is closely related to the dormant commerce clause). That’s what I take Saenz to mean when it says “a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the ‘Privileges and Immunities of Citizens in the several States’ that he visits.” Read that way, however, it doesn’t say anything about what rights (the “privileges and immunities”) a state must give its own citizens—only that if a state extends privileges and immunities to its own citizens it must extend those privileges and immunities to the “citizens in the several states.” Under that reading, the 14th Amendment has a much broader purpose for its “privileges or immunities” clause—it seems to be the hook to link protections of “fundamental rights” to all citizens (by making them rights of citizens of the United States), so that states could deprive none of them (including its own citizens) of such rights. At least, that was what seems to me its most plausible purpose (including the idea that it was intended to undo Barron v. Baltimore, which had, rather logically (structurally) read the Bill of Rights as protecting only against actions by the federal government, not states)—until Cruikshank (not Slaughterhouse) effectively read the “privileges or immunities” clause out of existence. Indeed, that’s how I read Black’s ultimate position about the full incorporation of the bill of rights to apply to states—he ultimately rests on “privileges or immunities” of the 14th Amendment rather than its due process clause. See Duncan v. Louisiana (Black concurring: “I can say only that the words ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States’ seem to me an eminently reasonably way of expressing the idea that henceforth the Bill of rights shall apply to the States.”) It is very difficult to argue that Article IV applied the bill of rights to the states, particularly in the face of Barron v. Baltimore. If that is so, the “privileges or immunities” clause of the 14th Amendment is far from redundant of the “privileges and immunities” clause of Article IV.

It is true that when discussing the 14A one should say "P or I" and I find myself saying "P&I."

But, this is in part because the framers of the 14A themselves connected the two, thus making the different conjunction more confusing.

The SC treats the Art.IV version as an equal protection provision of sorts. See, e.g., Doe v. Bolton. This probably reflected its core purpose: states could not treat out of state visitors differently than their own citizens.

Two problems. Some didn't consider blacks citizens and others didn't even treat out of state white visitors the same. Oh, and some treated all citizens not very well in some ways. If a state didn't protect freedom of speech, they didn't have to protect the speech of visitors, right?

The 14A dealt with the black citizenship issue. It broaden the rights of all to the degree national citizenship rights (e.g., 1A), now applied writ large, was stronger than those in some states. And, it gave Congress special power to enforce its provisions.

In fact, in various antebellum cases, Art. IV set forth obligations that ultimately were the moral responsibility of the states alone. See, e.g., the fugitive provision along side the P&I Clause. Kentucky v. Dennison. (sp?)

The 14A gave clear federal responsibility, including in the courts, to protecting privileges and immunities. So, it has more bite than you suggest.

The P and I clause, in Article IV of the original Constitution, says,The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

The P or I clause of Amendment XIV says,No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

So the only real difference between the two clauses is that one says "Citizens in the several States" and the other says "citizens of the United States." That difference in wording could just be a reflection of changing views of state citizenship vis-a-vis US citizenship.

Tom Jackson said (9:42 AM) --

>>>>>> It is very difficult to argue that Article IV applied the bill of rights to the states <<<<<<

I agree -- the original Constitution was declared to be in effect before the Bill of Rights was submitted to the states for ratification, so it can't be argued that the P and I clause of Article IV was expressly intended to apply to the Bill of Rights. However, what about the Constitution's Supremacy clause, which says,

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

When and where did people ever get the idea that the Supremacy clause does not prohibit the states from abridging rights that are guaranteed by the US Constitution?

Anyway, as I indicated, apparently the purpose of the P or I clause of the 14th Amendment was to help overturn the Dred Scott decision's rulings that blacks could not be citizens and "had no rights which the white man was bound to respect," and I have not seen any evidence to the contrary. Also, the P or I clause affected the North as well as the South -- for example, Illinois Senator Stephen Douglas said in his first debate with Lincoln,

We are told by Lincoln that he is utterly opposed to the Dred Scott decision, and will not submit to it, for the reason that he says it deprives the negro of the rights and privileges of citizenship. (Laughter and applause.) . . . . . .Do you desire to strike out of our State Constitution that clause which keeps slaves and free negroes out of the State, and allow the free negroes to flow in, ("never,") and cover your prairies with black settlements? Do you desire to turn this beautiful State into a free negro colony, ("no, no,") in order that when Missouri abolishes slavery she can send one hundred thousand emancipated slaves into Illinois, to become citizens and voters, on an equality with yourselves? ("Never," "no.") . . . . . For one, I am opposed to negro citizenship in any and every form. (Cheers.) I believe this Government was made on the white basis. ("Good.") I believe it was made by white men for the benefit of white men and their posterity for ever, and I am in favor of confining citizenship to white men, men of European birth and descent, instead of conferring it upon negroes, Indians, and other inferior races. ("Good for you." "Douglas forever.")

I wish to point out that in the Slaughterhouse Cases, the Supreme court held that privileges and immunities of a citizen of the United States, under the Fourteenth Amendment, are only such as owe "their existence to the federal government, its national character, its Constitution, or its laws." Slaughterhouse Cases, 83 U.S. 36, at page 79. Whereas, privileges and immunities of a citizen of the several States (Footnote 1), under Article IV, Section 2, Clause 1 of the Constitution of the United States, were now those described in Corfield v. Coryell:

”Fortunately we are not without judicial construction of this clause of the Constitution. The first and the leading case on the subject is that of Corfield v. Coryell, decided by Mr. Justice Washington in the Circuit Court for the District of Pennsylvania in 1823.

’The inquiry,’ he says, ‘is, what are the privileges and immunities of citizens OF (emphasis mine) the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would be more tedious than difficult to enumerate. They may all, however, be comprehended under the following general heads: protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole.’ ” Slaughterhouse Cases: 83 U.S. 36, at pages 75-76. (Footnote 3)

__________________

Footnotes:

(1) The Supreme Court decided in the Slaughterhouse Cases that because of the Fourteenth Amendment there were now two seperate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment; and a citizen of the several States, under Article IV, Section 2, Clause 1. (Footnote 2) The last was later reaffirmed in Cole v. Cunningham:

“The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).

In addition, in the Civil Rights Cases, the Supreme court states the following on the first section of the Fourteenth Amendment:

“The first section of the Fourteenth Amendment (which is the one relied on), after declaring who shall be citizens of the United States, and of the several states, is prohibitory in its character, and prohibitory upon the States. It declares that:

‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ “ Civil Rights Cases: 109 U.S. 3, 10-11 (1883).

(2) “We think this distinction and its explicit recognition in this Amendment of great weight in this argument, because the next paragraph of this same section (first section, second clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” Slaughterhouse Cases: 83 U.S. 36, page 74.

And, “In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens OF (emphasis mine) the several States (Footnote 4 and 5).’ ” Slaughterhouse Cases: 83 U.S. 36, page 75.

(3) In Corfield v. Coryell, Justice Bushrod Washington writes:

“The inquiry is, what are the privileges and immunities of citizens IN (emphasis mine) the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added, the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State, in every other State, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.’ "

(4) Article IV, Section 2, Clause 1 reads:

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens IN (emphasis mine) the several States."

“The object of the convention in introducing this clause into the constitution, was to invest the citizens of the different states with the general rights of citizenship; that they should not be foreigners, but citizens. To go thus far was essentially necessary to the very existence of a federate government, and in reality was no more than had been provided for by the first confederation in the fourth article. . . .

The expressions, however, of the fourth article convey no such idea. It does not declare that ‘the citizens of each state shall be entitled to all privileges and immunities of the citizens OF (emphasis mine) the several states.’ Had such been the language of the constitution, it might, with more plausibility, have been contended that this act of assembly was in violation of it; but such are not the expressions of the article; it only says that ‘The citizens of the several states shall be entitled to all privileges and immunities of citizens IN (emphasis mine) the several states.’ Thereby designing to give them the rights of citizenship, and not to put all the citizens of the United States upon a level.”